Gay or Lesbian Stepparents and the Law

Gay or Lesbian Stepparents and the Law

Here are some details about the legal situation specific to gay stepfamilies. (See What You Need to Know about Custody for more general legal advice.)

It's scary to be lesbian or gay with a family and children when the custody situation is as precarious as it often is. Archaic ideas and rigid court systems have led to many life-long partners who feel that they're not free to live with each other, for fear that one will lose his or her children. Things are improving for gay parents, but they still aren't easy, and in some places the laws are fairly draconian. Homosexual sex (as well as sex between unmarried partners of any kind) is still a crime in some states!

If your partner's ex (and the family of your partner's ex) is liberal and accepting of your partner's sexuality, breathe a very big sigh of relief. You're very fortunate. There will be no custody battle unless one of the ex-partners declares one.

Big Bad Courts

Custody decisions vary widely from state to state and jurisdiction to jurisdiction. This means that you and your partner need to do research about your rights and the legal precedents. Yup, if there's a custody battle a-brewin` (even if it's just a teeny black cloud off in the distance), it's time to get some good legal advice before you've got a tornado in your front yard.

The traditional advice to parents in the middle of a custody dispute is to be discreet in your sexual activity. This holds true and should be doubly stressed for lesbian and gay parents. It's possible that you may be able to live together and pass as roommates, if people don't know you are gay.

Historically, evidence of homosexuality has been sufficient to deny custody to a parent. The stigma of homosexuality (combined with the court's false assumption that just because you're gay or lesbian, you live a promiscuous lifestyle) has produced this reaction. Now, it's true, courts are changing for the better, but the system still isn't great.

There's some good news: Increasingly, the burden is on the heterosexual parent or couple to prove the connection between a gay parent's lifestyle and harm to the child. There's also some bad news: You partner can use anything (including the fact that your stepkid might be teased at school) to prove that the kid won't be comfortable, happy, or safe with you.

If your partner wants custody of the children, he or she should be way discrete in lifestyle. If your partner has custody, remember (how could you forget, with these ugly threats hanging over your head) that custody and visitation terms can always be changed. This may mean that you're a hush-hush matter.

Can't live with that? If you two are living openly together as a gay or lesbian couple and you want to openly stepparent your stepchild, you should be prepared to testify in court. Then it's up to the judge.

Stepparenting in Absentia

In some states, when the ex objects to the presence of a gay or lesbian parent's partner, the courts will restrict visitation to times the partner isn't there or, if the gay parent and the partner are living together, will disallow overnights. Other states are more reasonable, allowing the usual visitation unless harm to the child is demonstrated.

When your partner has kids and you are not allowed to spend time with them, it's hard to be an active stepparent, now, isn't it? When you and your partner are very close and share all aspects of your lives together, being cut off from such a big piece of your Love's life can feel destructive, and just plain sad. Your role shifts to support system and Big Ear for your partner.

Just because you can't see or get to know your stepkids doesn't mean that you should ignore they exist. Talk with your partner about the visits. Live vicariously. It's important to your relationship to maintain some kind of link, even if it is purely emotional. Remember, too, that things will change over time: The kids will grow up, and the legal atmosphere will shift. Never give up hope.

Your Rights as a Gay Stepparent

You've been together seven years and your stepson is nine. Now you're breaking up. Can you get visitation rights? Not usually. Unless you've adopted your stepchild, you've got no parental rights (you've also got no parental responsibilities!). There have been a few new rulings in Wisconsin, Pennsylvania, and New Mexico that may show a change in rights in those states.

Be prepared to prove you've acted as a parent in all ways (including financially), and you may have a chance. While you're together (and deeply committed to parenting the little Snookums in question), it's a good idea to draft a co-parenting agreement.

A co-parenting agreement is a document that clarifies the stepparent's role, including making explicit the expectation that, should the adult relationship dissolve someday, the stepparent will continue to play a role in the child's life. It may, or may not, hold up in court. A co-parenting agreement is not directly enforcible—it merely shows intention. But there is growing support among the legal community for the idea that a child suffers when removed from contact with people whom she loves, and who have played a parental role.

Co-parenting agreements can be short, or they can be very detailed. The National Center for Lesbian Rights at 415-392-6257 has a free sample co-parenting agreement. It's geared toward sperm-donor situations, but can easily be modified.